*1 necessary to determine it is complaint, the limitations during time which
period Brown to tolled order for
period remedies. administrative
pursue
Therefore, District we REVERSE in order and REMAND dismissal
Court’s may consider
that the District Court which the statute period during
decide for such other limitations was tolled and necessary. may
proceedings PERRY, Plaintiff-Appellant,
Everett McGINNIS, al., et
Kenneth
Defendants-Appellees.
No. 98-1607. Appeals,
United States Court
Sixth Circuit.
Argued Nov. April Filed
Decided and *3 for (argued), Goodman Center
William York, NY, Rights, New Ju- Constitutional (briefed), & lia Ila Sherwin Haddad Sher- Oakland, CA, win, Plaintiffs-Appel- for lants. (briefed),
Frank J. Monticello Office General, Employment Attorney Public MI, Division, Lansing, Elections Defendants-Appellees. (briefed), Baker, M. Hon-
Frederick Jr. Cohn, Miller, Lansing, & igman, Schwartz MI, Amicus Curiae. CLAY, KEITH, NORRIS, and
Before:
Judges.
Circuit
KEITH, J.,
opinion
delivered
court,
CLAY, J., joined. ALAN
in which
14, 1997,
court dismissed Per-
March
NORRIS,
delivered
(pp.-),
E.
J.
claims,
and Fifth Amendment
ry’s
First
concurring
part
opinion
separate
motion with
but denied the
part.
dissenting
EL-
equal
respect
protection
thereafter,
OPINION
Perry,
vol-
claims.
soon
CRA
untarily
equal protection
dismissed
KEITH,
Judge.
Circuit
Michigan
brought
claim
under the
Consti-
(“Per-
Plaintiff-Appellant Everett
September
tution. On
deci-
the district court’s
ry”) appeals from
summary judg-
filed a motion for
officials
(the
Defendants-Appellees’1
sions on
ment,
April
the district
officials”)
summary
motion for
“prison
summary judgment on
granted
Rule of Civ-
to Federal
judgment pursuant
*4
remaining
Perry appeals
claims.
the low-
56(c)
(“FRCP”)
and motion to
il Procedure
summary judgment
for
grant
er court’s
upon
a claim
failure to state
dismiss for
prison
grant
officials as well as its
pursuant
to
granted
which relief can be
motion to
dismiss.
12(b)(6).
the dis-
REVERSE
FRCP
We
and REMAND for
trict court’s decisions
II. Race Discrimination
consistent with this
further consideration
that the district court
Perry argues
opinion.
determining
in
that he failed to raise
erred
as to his
genuine issues of material fact
Background
I.
claims
the Four
race discrimination
under
30, 1988, Perry, a Black
On October
teenth Amendment and the ELCRA. We
man,
by
Depart-
Michigan
hired
agree.
“MDOC”)
(the
as an
ment of Corrections
(“ALE”).
Administrative Law Examiner
grants of
This Court
reviews
Specifically, he worked for the MDOC’s
novo,
summary
applies
de
and
judgment
Policy
Hearings
hearing
and
as a
Office
the same standard that the district courts
major
maker in
mis-
officer and decision
56(c):
in
apply. That test is set out
FRCP
disciplinary hearings Michigan
conduct
“Summary
if
Judgment
appropriate
is
5, 1993,
On November
Per-
prisons.
state
to in
pleadings, depositions,
answers
ry was fired.
file,
and
on
to
terrogatories,
admissions
affidavits,
any,
complaint
gether
initial
on
with the
if
show that
Perry filed his
27,
any materi
volley
genuine
1996. After a
of motions
there is no
issue as to
March
moving
fact
enti
complaints, Perry
party
and amended
al
and that
is
dismiss
Sep-
as a matter of law.” In
judgment
filed his final amended
tled to
test,
it is well settled that
bringing
applying
First and Fifth
this
tember
of the non-movant is to be
claims as well as a Fourteenth
evidence
“[t]he
Amendment
claim,
believed,
justifiable
that all
inferences
equal protection
claim
and
Amendment
favor.” Anderson v.
equal protection
violations
contraven-
are to be drawn
Inc.,
242,
Constitution,
255,
Liberty Lobby,
477
106
Michigan
tion of the
and
U.S.
(1986).
Fur
in violation of
601
context,
Cir.1986).
Fenik,
disciplinary
plaintiff
in the
(6th
860
Gutzwiller v.
(6th Cir.1988),
this Court
colleagues
to whom he seeks to com-
asserting a
plaintiff
pare
established
himself “must have dealt with the
equal protection
Amendment
Fourteenth
subject
same
have been
supervisor,
§
prove
1983 must
under
U.S.C.
claim
and have
engaged
same standards
required to establish
the same elements
differentiating
same conduct without such
Title VII
treatment claim under
disparate
mitigating
circumstances that would
Act of 1964. Both
Rights
of the Civil
distinguish
employer’s
their conduct or the
to establish a
agree that
order
parties
Mitchell,
them for it.”
treatment of
case,
plaintiff
must set
prima facie
addition,
F.2d at 583.
this Court has
“1)
following elements:
he was
forth the
in applying
asserted
the standard
2)
class;
protected
of a
he was
member
courts should not demand exact correla-
action;
subject
employment
to an adverse
tion, but should instead seek relevant simi-
4)
3)
job;
for the
qualified
he was
Ercegovich
larity.
Goodyear
See
Tire &
conduct, he was treat
the same or similar
(6th
Co.,
Rubber
Cir.
situated non-
differently
similarly
ed
1998). Here,
hearing
all
were su-
officers
employees.” Perkins v. Univer
minority
officials,
subject
pervised
the same
Mich.,
F.Supp.
sity
standards,
charged
the same
with the
*5
(E.D.Mich.1996); see Mitchell v. Toledo
They
similarly
same duties.
were indeed
Cir.1992).
(6th
It
Hosp., 964
situated.
plaintiffs race
be noted that
should
neces
motivating
a
factor not
need
record evidence demonstrates
Abundant
sole factor—in order for the
sarily the
Perry
prison
that the
officials treated
dif-
to succeed in his claim. See Gutz
plaintiff
ferently
non-
similarly
than these
situated
willer,
judgment
all
wrote)
ticket,
disciplinary
and was
on a
drawn in favor of the non-movant
are to be
once
Officer Bullock
disciplined.
to be
and the non-movant’s evidence is
herself
pris-
inmate number for a
typed
wrong
believed,
district
surprising
it is
oner,
re-
resulting
wrong prisoner
in the
as it did. This Court has
court decided
The
finding in his record.
ceiving guilty
a
qualify
“similarly-situated”
that to
held
job
ry
qualified
seem
for
officials, however,
discipline
would
did not
prison
degree
a
and is a member of
he has
law
her.
Bar,
they argue that his
Michigan
but
Perry for
disciplined
officials
prison
The
so,
doing
job
poor.
performance was
“Destruction or Mis-
charge of
stating the
exclusively
rely
prison
officials
almost
or
a
of
Property with Value
$10.00
use of
for the al-
Perry’s numerous citations
Proper-
Misuse
as “Destruction:
More”
dur-
disposition
substandard
cases
leged
More.” In
or
ty with a Value
$10.00
prong
ing his tenure. The discussion
words,
him for re-
they disciplined
other
above, however,
enough to derail
four
a colon. Offi-
the word “or” with
placing
From the
prison
argument.
Bullock,
that she has
testified
cer
the cita-
Perry
insisted that
beginning,
has
name
type
proper
to
frequently failed
Evi-
pretextual.
he received were
tions
corresponding report,
charge
a
on the
indicating
was often cited
dence
disciplined
Bullock has never been
yet
hearing
other
officers
for errors for which
so.
failing
to do
cited for omissions
were not cited and was
Perry for
disciplined
The
officials
trivial,2
supports
that seem
conten-
get physical
evidence
re-listing case
therefore,
is,
clearly genuine
tion. There
physical
evidence
he
photograph
regarding
issue of material fact
Ann
Hearing
deemed relevant.
Officer
qualifications.
get physi-
has re-listed cases to
Baerwalde
failing
The district court erred
photograph
physical
cal evidence or
inferences in
and con-
relevant,
draw
favor
that she deemed
but has
evidence
determining
failed to
sequently
so.
disciplined
doing
never
been
satisfy
three and four of the afore-
prongs
Perry for
disciplined
officials
mentioned test. This error led the district
failing
hearing
to state in his
record that
*6
grant summary judgment
for the
(when
than
an
door is worth more
$10
officials.
prison
demanded that the
element of the crime
$10).
acknowledge
possibility that the
than
Leon- We
property be worth more
Houter,
treatment of Per-
Supervisor
prison
disparate
of the Office
officials’
ard Den
ry
nothing
Perhaps,
had
to with race.
Policy
direct
do
Hearings
that his not-
hearing
prison
upset
that other
offi-
officials were
supervisor, admits
mistake,
high
rate was so
relative
guilty/dismissal
have made the
but he
cers
same
(discussed infra).
per-
them.
to the norm
And
disciplining
does not recall
argue, Perry
haps,
prison
as the
officials
Perry’s infractions and those of his col-
hearing
carrying
weight
not
as a
leagues
obviously
“comparable
were
ser-
hand,
possible
it is
officer. On the other
iousness,”
required
as is
under the stan-
ul-
prison
disciplined
that the
officials
Mitchell,
The court erred as three as reversed case Per- further consideration.3 accept well. The officials 10, 1992, regarding charge dangerous report 2. On December was disci- in his Dangerous Contraband. Possession of why plined failing to state razor blade is
3. Claims for race
violation
discrimination
603
ry
deprived
asserts that he was
of his
Expression
III. Freedom of
right
First Amendment
to freedom of ex-
argues
further
the district
1)
pression
ways:
in two
he suffered retal-
granting
court erred in
iatory
findings
termination because of his
§
claim
to dismiss his
1983
motion
an
prisoner
made as
ALE in
misconduct
right
expres-
of his
to freedom
violation
2)
hearings; and
he
retaliatory
suffered
Amendment,
sion under the First
made
termination because of his complaints of
by
to the
the Fourteenth
applicable
states
race discrimination. We will
deal
agree.
Amendment. We
in turn.
two
12(b)(6)
An
motion
FRCP
to dis
may only
a claim
miss for failure to state
A.
granted
beyond
if it is clear
doubt
plaintiff
prove
can
no set of facts
support
of his claim which would entitle
matter,
aAs
threshold
we must
King
him to relief. See Hishon v.
&
determine whether
decisions made
Spalding,
104
467 U.S.
S.Ct.
disciplinary hearings
inmate
constitute
(1984).
determining
dismissal de novo. See Cameron v.
L.Ed.2d
that a
(holding
sit-in
Black students
symbolic speech).
constitutes
to have
a claim
order
stated
under
*7
1983,
§
alleged
must have
in his
This Circuit has done the same—most
1)
deprived
he was
of a
Isibor,
notably
relevantly
and
in Parate v.
right
by
secured
the Constitution or laws
(6th Cir.1989).
In the assigned instant there is no debate the student a “B” while the Dean prong. as to the The offi- Engineer- second of Tennessee State’s School of dispute ing sug- cials do not that while working Technology the Court —whom authority affinity under the had a they gests particular of the MDOC the stu- acting were under color of state law. The dent involved because of a shared national question deprived heritage is whether that the student receive —insisted refused, right by a secured the an “A”. Parate the Dean Constitution. Per- When ELCRA, opinion of the like Fourteenth Amendment the discussion in Part II of this claim, claims, equal protection interpreted completely applicable are is to the ELCRA Rights grant accordance VII same—the with Title of the Civil and the conclusion summary judgment the Chippewa Valley Act 1964. See v. reversed and the case is Kitchen
Sch., 825 F.2d As remanded. First act entitled to communicative to fire is a and threatened disciplined Parate protection. Amendment him. “the that because explained The Court 2. symbolic grade is of a letter assignment Amendment- First A determination that specific a to send intended communication is, of is involved protected expression student, pro- individual the
message to the
in the
course, only
preliminary
issue
within the
act” falls
communicative
fessor’s
retaliatory
analysis of a First Amendment
Parate,
First Amendment.
of the
bounds
claim.
discharge
then held
at
The Court
868 F.2d
gov
that a
It is well established
forcing Parate to choose
act of
the Dean’s
public
“condition
employer
ernment
cannot
grade against his
changing the
between
infringes
the
on a basis
employment
job
keeping
judgment
professional
constitutionally protected inter
employee’s
Parate’s
“unconstitutionally
compelled
v.
Connick
expression.”
est in freedom
Id. at 830.
speech.”
138, 142,
103 S.Ct.
Myers, 461 U.S.
case
Parate and the instant
Although
(1983).
logical
As a
conse
76 L.Ed.2d
the state’s ma-
involve different sectors
government
em
quence, retaliation
and a
institution
chinery
educational
exercises
against an
who
ployer
individual
—an
cases involve
correctional institution —the
rights constitutes
his First Amendment
pro-
acts
nearly identical communicative
Zilich v.
Amendment violation. See
First
Cir.1994).
(6th
Amendment.
In the
by the First
Longo,
tected
Parate,
case,
the state en-
could
employee
even if the
instant
This is the case
any
employees with the task
terminated for
reason. See
one of its
have been
trusted
McPherson,
facts,
of cir-
483 U.S.
evaluating a set
Rankin
reviewing
(1987).
2891,
We find sion, grade, of a case.4 assignment like the letter facie fact, normally re Pickering test determination prong involves 4. Because three Here, argues that he was fair and over the course of the Perry following sixteen disposition disciplinary citing in his months him impartial for mistakes his dis- cases, his was a above, and that each of decisions position of cases. As noted Perry’s protected by act the First communicative colleagues many of made the same mis- argues He further that takes, Amendment. Perry but were not cited. was ter- him for that terminating and disciplining receiving minated two weeks after the last infringed upon his expression, the MDOC of those nineteen memoranda. expression. Perry presents freedom of of his asser- following support facts a.
tion. assumed, The district court ar eval- probationary The MDOC conducts guendo, that Perry’s decisions inmate all new ALEs after three uations of disciplinary hearings constituted matters job again on the and after six months concern, of public proceeded and then satisfactory rat- months. received disposition base its of the case on prong and ings probationary at both evaluations Pickering two of the balancing test —the receive reviews for the good continued to out, prong. When fleshed it is clear that year-and-a-half first of his tenure. On Perry’s through insistence his decisions 8, 1990, Perry March received his first impartial operate that he be and within the Den supervisor, citation from his direct law, confines of constitutional constitutes Houter, regarding problem with his dis- public on a matter of concern. twenty- position During of a case. hearings, When conducts he is doing origi- Den seven months between Houter’s at the Michigan legisla so behest of the Perry’s nal about work and June ture, Comp. § see Mich. Laws 791.252 22,1992, Perry received four addition- (1979), making and is decisions can regarding al citations disposition greater result in a period lesser Perry disposed cases. The rate at which incarceration for an inmate. are These through finding not-guilty of cases inmates intensely public matters. dismissals, however, issuing high- Furthermore, public undoubtedly than the not-guilty/dis- er norm. an in a public employee’s has interest ef- 18%, rate hovered missal between 17% forts to remain undeterred which was well above the institutional employer’s policy that seeks to limit consti- Perry’s supervi- standard 10%. When tutionally mandated fairness in inmate dis- rate, not-guilty/dismissal sors noticed his ciplinary hearings. See Marohnic v. they him frequency which cited Walker, disposition for substandard of cases in- Marohnic, a case which this Court dramatically. creased examined what constitutes a matter of On June Den Houter wrote a concern, the Court concluded Ochten, Marjorie memorandum to Van “[pjublic interest is near its zenith when Policy Administrator of the Office of ensuring public organizations are be- Hearings supervi- and Den Houter’s direct with the law.” ing operated accordance sor, pursuant noting request to her he Id. had reviewed all of not hearing reports, certainly dismissed and found that Public interest near its ze- prone finding prisoners not nith here. the case of v. Wolff *9 McDonnell, on guilty. Beginning June four (1974), days the Supreme after Den Houter’s memorandum to L.Ed.2d 935 Court Ochten, dis- Van received the first of mandated establishment demanding that in- ciplinary hearings, nineteen memoranda that he would receive (D.C.Cir. 1994), rightful jury its the district court served for or the court in fact- role, Freeh, finding ly see Tao v. did not reach it. in 1980’s, it to 10% the Bolden be- but reduced process before due mates be afforded 1990’s, “thought that he early noting [the The major misconduct. disciplined ing Van panoply doing full better.” that “the should be acknowledged MDOC] Court a criminal rate was dis- [in a defendant concedes that rights due Ochten that, regard apply” not when not- meetings does at prosecution] cussed hearings, and that there was disciplinary got high, rates guilty/dismissal to inmate guaranteed process bring those the contours due to pressure “put wardens extent on con- still, trial, some depends an inmate at Hear- Further rates down.” The 2963. Court Id. at 94 S.Ct. specifi- text. Arvid Perrin testified ing Officer articulated, pro- that due clearly coercion of that cally ubiquity about the much before it only so can be finessed every cess the names of asked to recite when touchstone process. “The ceases to be due about the complained who hearing officer protection of the individu- process due guilty: to find inmates pressure government.” arbitrary against al action Hearing Of- complaints from I’ve heard 2963.5 Id. at they were criticized ficers about times Here, pursuant that Perry asserts finding somebody not or dis- case_ Wolff, in act- he Supreme Court’s mandate excep- I think the missing a impartial as an non-arbitrarily and know, ed be, you easier.... tion would He further as- fact finder. independent to, I I have and talked [P]eople seen disciplinary hearing through serts just all of them I had say would about decisions, justice eye with an toward made or another. Just a heard at one time ensuring least he impartiality, was say ever couple that I heard haven’t —at for which he was to the extent of the cases that. operat- MDOC was responsible —that finding If officers focus on 90% hearing law as estab- in accordance with the ing as guilty, the defendants before them lished Wolff. suggests, thus far the evidence adduced MDOC, however, that the Perry alleges impartial, as is they possibly cannot be by demanding contravening the law was prisoner The whose required by Wolff. appearing inmates ALEs find 90% of not-guilty finding, but whose case merits Ochten denies guilty. them Van before not-guilty case would result eleventh hearing any of the officers that she or decisions, is sunk. finding one hundred (of whom was supervision her under opened. his file is His fate is sealed before one) formally partic- limited to a were ever justice, system arbitrary reeks of Such not-guilty/dismissal Regardless rate. ular injustice. can which hearing and her officers of whether she served to ensure Because regulation to a de-
were formal beholden state, MDOC, an arm of the that the manding not-guilty/dismissal a certain with the law as operating accordance rate, suggests that overwhelming evidence it concerns the most Wolff, established least, was, very strong ex- there at the of matters. not-guilty/dismissal rate pectation In her rise above 10%. own should not b. Deputy deposition, admits Van Ochten above, noted the district Facili- As Director Bolden of the Correctional Pickering test surpassed one of the prong decided “that if the Administration ties disposition of the facility altogether, its rate at a went based not-guilty/dismissal two, concluding that prong that he was case on percentage, a certain above ALEs out disciplining interest signal.” a trouble MDOC’s going to view on a matter weighed Perry’s right speak early rate 20% the The critical disciplinary making cases. See Michigan just sion state as resolute in 791.252(i) (1979). § arbitrary impartial Comp. Laws prohibition deci- Mich. its *10 concluding impact city’s concern. In as of the statement on of the legitimate organizational interests. the court erred. (citations omitted) Meyers, 934 at 730 cases, factual many inadequate due to added). (emphasis organizational MDOC’s prong balancing the two test development, interest, therefore, legitimate must be if 12(b)(6) on a mo- performed “cannot be the court is to a meaningful effectuate County Angeles, tion.” Weisbuch v. Los balancing. The district court concluded This is that the legitimate. MDOC’s interest was such a case. Because the facts were not disagree. We enough developed pleadings, well the The district court asserted that “[t]he performed court not have the the should MDOC has to be to discipline able its court, however, performed the test. The hearing findings credibility officers for and beyond pleadings the by going test in determinations made misconduct finding, imper- in fact which is engaging hearing reports; otherwise all ALEs 12(b)(6) stage. missible at the FRCP accountability would be insulated from for Reaching beyond pleadings, the the court any statements made in that context.” determined that the interests out- MDOC’s Thus, the district court determined that weighed Perry’s rights. The court based the organizational interest at stake was proposition decision on the its in maintaining MDOC’s interest accounta- discipline must MDOC be able to its hear- bility among hearing ac- officers. We ing for their officers decisions order to knowledge that maintaining accountability all from prevent being ALEs insulated legitimate is a gov- interest. Whether the accountability. Nothing plead- in the ernment’s interest maintaining account- ings could have led the court to such a ability Perry’s disciplining led to ulti- required conclusion. Such conclusion termination, however, mate far less court, finding of facts. The district clear. produced has substantial evi- against proceeding decided suggesting dence implores MDOC fact-finding stage of the trial. It erred in hearing its officers to no than find less doing so. of the defendant’s them guilty, 90% before Moreover, the district court and he insists that he was disciplined impermissible struck the in an balance terminated inter- because MDOC’s Supreme manner. Both the Court Ran ensuring guilty findings est in for no less in Meyers City kin and this Court in- Drawing than 90% defendants. all Cincinnati, (6th Cir.1991), 934 F.2d 726 plaintiff, ferences in favor of the as is have outlined the which a 12(b)(6), considerations required under FRCP would utilizing court must take into account when seemingly lead the district balancing Taking test. its cue from part government’s conclusion Rankin, this Court wrote: interest —if not its entire dis- interest —in ciplining terminating Perry justify order a restriction on maintaining guilty of 90%. As ex- rate speech public concern aby above, plained particular to a adherence plaintiffs employee, impair must guilty necessarily arbitrary rate results in by superiors, discipline have detrimen- justice adjudged innocent inmates impact tal relation- working on close guilty pursuit in the interest. In- this ships, legitimate goal undermine a 90% rate flies upon sistence employer, impede per-
mission
by Wolff,
face of
process
due
mandated
duties,
speaker’s
formance of the
or im-
legitimate organizational
thus not a
and is
pair harmony among co-workers. The
interest.
showing
state bears the burden
least,
justification
not thor-
legitimate
discipline.
very
As
At the
record is
Rankin,
ough enough
we look for evidence of the
to determine whether
*11
public employ-
the
is lost to
Perry’s
speech]
dom of
impairing
in
interest
MDOC’s
privately
communicate
arranges
who
through discipline
ee
right
Amendment
First
spread
than to
rather
employer
a desire to with his
was based on
and termination
Givhan, 439
public.”
before the
accountability or
desire
his views
maintain
Here,
415-16,
it is
693.
rate. As
at
U.S.
a 90%
maintain
Perry complained
about
determining
undisputed
that
erred
district
favor the
that he did so
only
balance could
racial discrimination
Pickering
grant-
consequently
supervisors.
conversation
prison
private
officials
to dismiss.
motion
ing
prison
officials, however, argue that
prison
The
Therefore,
remanded
the issue is
of racial dis-
although Perry complained
consideration
for further
district court
not
lose his First
crimination and did
opinion.
line with this
communicating
protection
Amendment
of
is not a matter
Perry’s claim
privately,
B.
rely
The
officials
public concern.
that
states
complaint,
In his
Transpor-
Department
Rice v. Ohio
of
MDOC, made an
he
working
(6th
Cir.1989),
while
tation,
F.2d 716
he
asserting that
was
grievance,
internal
employee
if an
not
that
proposition
race, and
of his
being disciplined because
citizen,
is instead
as a
but
speaking out
ulti
disciplined and
he was further
that
employment
advancing
personal
his own
terminated,
of
part,
because
mately
may not
complaint
dispute,
employee’s
that
Pickering
ap
test
The
complaints.
those
public
a matter of
concern.
be deemed
111(A)
opinion governs
of this
in Part
plied
Rice,
F.2d at 721.
See
instance,
In
analysis as well.
this
this
complaining
that
officials note
the first
district court used
personal employment
of
in the course
the issue—
dispose
the test to
prong of
court, citing
dispute, and that
district
12(b)(6) stage
the FRCP
determining at
Rice,
Perry’s complaint
decided
racially disparate
Perry’s complaint of
public
concern.
not a matter
treatment,
an internal
which consisted of
court, however,
its
made
The district
a matter of
grievance, did not constitute
September
in the instant case on
decision
public concern.
year
Sixth
over
before
Perry argues that the court
appeal,
On
Chappel Montgomery
v.
Circuit decided
governing pre-
misunderstood
simply
(6th
Protection,
County Fire
job Instead, himself. See id. at
the court determined the context Chappel’s speech
showed was on matter
of public concern because he addressed
matters “near the .public zenith” of con-
cern, he raised the matters repeatedly in
public fora (although the court noted that
Chappel’s private speech was protect- also
ed), “speech his on these was al- .matters entirely
most by speech undiluted indicat-
ing personal purely interests,” and there strong public interest speech. his
Id. at 578. Unlike Chappel, Per-
ry’s speech only personal addresses his
interests. reasons,
For these I would affirm the
district court’s dismissal of Perry’s free
speech claim arising from workplace his
complaints of race discrimination because
his personal involved em-
ployment dispute, not matter
concern.
Finally, I because would affirm the dis-
missal of First allega- Amendment
tions, I would also affirm the dismissal of process substantive due claim. JOHNSTON, re L. Robin Debtor.